About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 347
|
|
Rakgotho v Passenger Rail Agency of South Africa (47217/2014) [2016] ZAGPPHC 347 (12 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 47217/2014
DATE:
12 FEBRUARY 2016
In the matter
between:
SILAS MOLALLA
RAKGOTHO
..............................................................................................
Plaintiff
And
PASSENGER RAIL
AGENCY OF SOUTH
AFRICA
..........................................................
Defendant
JUDGMENT
Baawa J
[1] This is a claim
for damages arising from injuries suffered by the plaintiff when he
allegedly fell from a moving train.
[2] At the beginning
of the trial the parties agreed and an order was made separating the
issues to be tried in terms of Rule 33
(4) of the Uniform Rules of
Court and the case has proceeded on merits only.
[3] The plaintiff
alleges and the defendant admits the ownership of Kaalfontein Station
where the incident took place and the trains
moving in and out of
that station.
[4] The facts are
briefly that on 8 April 2014 the plaintiff was on his way to work at
about 05h45 in the morning. He proceeded
from his home at Esseien
Park to Kaaifontein Station in order to catch a train.
[5] At the station
he awaited the arrival of the train in platform 1 and when it came he
boarded together with other commuters.
When he boarded the train was
already full of other commuters and there was standing room only.
[6] He testified
that all he could manage was to find a place to stand near the door
of the carriage he boarded. He stood facing
the rear of the train
which had arrived from a northerly direction travelling towards the
south. There were passengers standing
towards his right hand side
whilst on his left side was the open doorway of the train.
[7] The train
started moving but the doors did not close. They remained open. He
had nowhere to hold on to as the support handles
attached to the roof
of the train had all been utilised by other passengers.
[8] No sooner had
the train started moving away from the platform than he was bumped by
the passengers who were nearest to him out
of the train. He landed on
the ground outside the train on his left hand side and he suffered
injuries to his head and on his hand.
He lost consciousness.
[9] The plaintiff
alleges that this was caused by the negligence of the defendant’s
employees who were negligent in that they
signalled to the driver of
the train that it was safe for the latter to set the train in motion
whilst the carriage doors were
open or that they failed to ensure
that all the carriage doors were closed before setting the train in
motion.
[10] The defendant
denied the allegations by the plaintiff and more particularly denies
that the plaintiff was a passenger in one
of its trains on the day in
question.
Evaluation
[11] The versions of
the two parties are mutually destructive. The plaintiff alleges that
he boarded the train in platform 1 en
route to Germiston to his place
of work. As a result when he was bumped off the train through an open
door he landed on the rail
line on the southern side of platform 1.
This is what is disputed by the defendant.
[12] The defendant
alleges that the plaintiff was found on the northern side of
platforms 2 and 3 on the route utilised by trains
proceeding towards
Pretoria. The defendant avers that it is therefore a physical
impossibility for the plaintiff to have been found
on that spot if he
was indeed travelling on the Germiston bound train.
[13] These versions
are presented for the plaintiff by the plaintiff himself and for the
defendant by two witnesses, namely a train
guard, Hazel Saula and a
security guard Emmanuel Khumalo.
[14] Both sets of
witnesses were subjected to thorough and lengthy cross examination.
Their versions remained the same as summarised
above and I do not
propose to regurgitate their evidence in detail.
[15] I need only
mention that the main bone of contention, namely, where the plaintiff
was found in an injured state was contested
with reference to the
sketch plan exhibit B 19 and a photograph exhibit C. Each party
averred that the photograph exhibit C represented
a depiction of its
version of events.
[16] When the
defendant closed its case it became clear that the conflict between
the two versions could only be resolved by means
of an inspection in
loco.
[17] I directed that
the inspection be held especially bearing in mind that the witness
Khumalo had testified that the plaintiff
was found between rail way
lines adjacent to platform 2 and 3 between mast poles EA 23/533 and
EA 23/466. These mast poles were
the main physical points of
reference with regard to where the plaintiff was found. According to
Khumalo he had recorded these
points contemporaneously with finding
the plaintiff.
[18] The inspection
in loco was held on Thursday 11 February 2016 by the Court and the
parties herein. The Court has already put
its notes on record
regarding the inspection in loco and I do not propose to repeat the
observations made by the Court and the
parties as these have been
accepted by both parties as correct.
[19] Cutting to the
chase, and bearing in mind the mutually destructive versions of the
parties, only one version can be true and
the other one must be
false.
[20] Until the
inspection was undertaken, the picture was quite confusing and either
version could have been true. The inspection
in loco has been most
helpful in clarifying matters. It is now common cause that if the
plaintiff boarded a train on platform 1
and was travelling in the
Germiston/Johannesburg direction, he would have fallen on the
southern side of platforms 1 and 2. It
is now also common cause that
mast poles EA 23/533 and EA 23/466 between which the witness Khumalo
found the plaintiff lie to the
north of platforms 2, 3 and 4. Bearing
this in mind and on the plaintiff’s own version, it would be a
physical impossibility
for him to have been bumped off a train moving
south but be found lying in a position north of platforms 2 and 3.
[21] Counsel for the
plaintiff has sought to hold on to Khumalo’s testimony with
regard to exhibit C which is a picture taken
of platforms 1 and 2
facing south in the Johannesburg direction. This picture was not
authenticated in that the photographer was
not called to testify and
the purpose for which it was taken was not clarified. Moreover the
immoveable position of the mast points
referred to above demonstrates
that Khumalo’s evidence that exhibit C depicted a northerly
direction of Kaalfontein Station
was erroneous which he himself
conceded under cross-examination.
[22] Despite Mr
Sibuyi’s submissions in this regard I cannot, using exhibit C
simply transpose Khumalo’s evidence and
pretend he testified to
the contents thereof as the photograph facing the southerly direction
of Kaalfontein Station. This would
be an undue alteration or
corruption of the evidence given before this court.
[23] I accept Mr
Mulligan’s submission that when two versions are mutually
destructive a court’s options are to believe
one or the other
or if not weigh the probabilities and decide the matter in accordance
with the balance thereof.
[24] In casu,
weighing the probabilities would have been like a plunge into
darkness which would be littered with a litany of uncertainties
but
the inspection lifted a possible veil of darkness in that it elevated
the quality of evidence in such a manner that the probabilities
were
narrowed almost to a level of certainty where the court could reach a
conclusion without hesitation.
[25] I also accept
that while the plaintiffs version was not inherently improbable, if
the court accepts the defendant’s version,
then the plaintiffs
version can only be described as dishonest.
[26] I find that
Khumalo’s version is corroborated by objective evidence of the
mast pole which was recorded in his pocket
book contemporaneously
with the discovery of the injured plaintiff. This evidence was not
challenged by the plaintiff; Khumalo
also recorded the plaintiffs
ticket number which was correct. He also recorded the plaintiffs name
which was correct. There can
therefore be no doubt that the mast pole
numbers which he recorded were correct. That objective evidence has
now been verified
during the attendance and observations in the
inspection in loco.
[27] The plaintiffs
counsel has argued that the difference in the evidence of the train
guard Ms Saula and the security guard Mr
Khumalo with regard to the
point where the plaintiff was found is suggestive of mendacity on
their part. Again taking the inspection
observations and Saula’s
evidence into account, the distance between the two points is a mere
11 meters. This can hardly
said to be a contradiction or conflict in
their evidence. Instead, I find it to be a remarkable point of
corroboration given the
fast pace of events on the day in question.
[28] In the
circumstances I find that the evidence of the two witnesses
constitutes the more probable version. I find that the evidence
with
regard to the mast poles took the matter beyond conjecture.
[29] In the result
the following order is made:
The plaintiffs claim
is dismissed with costs.
S. A. M. BAQWA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Heard on: 9-11
February 2016
Delivered on: 12
February 2016
For the
Plaintiff: Advocate M. Sibuyi
Instructed by: R.
S. Mahuntsi Attorneys
For the
Defendant: Advocate S. Mulligan
Instructed by:
Norton Rose Fulbright South Africa Inc.